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THIRD SECTION

CASE OF BERARU v. ROMANIA


(Application no. 40107/04)

JUDGMENT

STRASBOURG
18 March 2014

FINAL
08/09/2014
This judgment has become final under Article 44 2 of the Convention. It may be
subject to editorial revision.

BERARU v. ROMANIA JUDGMENT

In the case of Beraru v. Romania,


The European Court of Human Rights (Third Section), sitting as a Chamber composed
of:
Josep Casadevall, President,
Alvina Gyulumyan,
Dragoljub Popovi,
Luis Lpez Guerra,
Johannes Silvis,
Valeriu Grico,
Iulia Antoanella Motoc, judges
and Santiago Quesada, Section Registrar,
Having deliberated in private on 18 February 2014,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 40107/04) against Romania lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (the Convention) by an Israeli national, Mr Sorin Schumel
Beraru (the applicant), on 12 November 2004.
2. The applicant was represented by Mr B. Schneider and Mr F. Schultehinrichs,
lawyers practising in Frankfurt am Main. The Romanian Government (the Government)
were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.
3. The applicant alleged that he had not received a fair trial in the criminal proceedings
against him. He complained, in particular, that the taking of evidence by the domestic
courts had not been adversarial and that the rules for the taking of evidence had been
infringed by the domestic courts. He also complained that the domestic courts had not
observed their obligation to disclose all the evidence and had not ensured that his lawyers
had proper access to the file in order to prepare his defence.
4. On 27 January 2011 the application was communicated to the Government.

I. THE CIRCUMSTANCES OF THE CASE


5. The applicant was born in 1949 and lives in Tel Aviv.

A. Background to the criminal proceedings


6. In 2001, criminal proceedings were initiated against the applicant by the prosecutors
office attached to the Supreme Court in connection with the acquisition of a Romanian
company, called CICO, sold at auction by the Romanian State. He was accused of
committing several serious financial crimes.
7. In May 2001, an international arrest warrant was issued against the applicant.
8. On 18 February 2002, the prosecutor in charge of the case (H.G.) informed her
superiors in writing that she had been offered a significant bribe (1.5 million United States
dollars (USD)) in order to revoke the arrest warrant issued against the applicant. She added
that her husband (H.D.) had been contacted by police officers who had offered to facilitate
contact between the person used by the applicant as an intermediary, S.H., and her.
9. Subsequently, the prosecutors office attached to the Supreme Court authorised the
monitoring and recording of telephone conversations between the individuals involved in
the bribery.
10. On 14 June 2002, two of the police officers involved in the bribery, B.R. and U.I.,

BERARU v. ROMANIA JUDGMENT

met the prosecutors husband, H.D., on the terrace of a restaurant, in Bucharest, in order to
give him part of the intended bribe. They were apprehended while they were handing H.D.
USD 99,700.

B. The criminal proceedings against the applicant before the


first-instance court
11. Criminal proceedings were initiated against the applicant, S.H. and three police
officers who had acted as intermediaries.
12. By an indictment of 11 July 2002, the applicant was accused of bribery as defined
by Article 255 1 of the Romanian Criminal Code in conjunction with Article 7 2 of
Law 78/2000. The other four co-defendants, S.H., B.R., U.I. and B.S.L. were accused of
conspiracy to commit bribery.

1. The facts as set forth by the prosecutor


13. According to the prosecutor, the applicant had asked S.H. to resolve his legal
problems in Romania. Based on the applicants instructions, S.H. had contacted B.S.L., a
police officer whom he knew in Bucharest, and had asked him for help in contacting
prosecutor H.G., who had been tasked with prosecuting the applicants case. B.S.L. had
helped S.H. to meet two other police officers, B.R. and U.I., who it was claimed had a close
relationship with the prosecutors husband, H.D.
14. S.H. and the two police officers, U.I. and B.R., met several times. The police
officers informed S.H that the applicants legal problems could be resolved in exchange for
payment of about USD 2-3 million, to be split among several individuals, including
prosecutor H.G. As the applicant did not agree with the proposed figure, S.H., accompanied
by U.I. and B.R. went to Tel Aviv in order to discuss the matter directly with the applicant.
In Tel Aviv they agreed on the figure of USD 1.5 million but they did not agree about the
way in which this sum would be paid.
15. On 19 March 2002 U.I. and B.R. met the prosecutors husband and passed on the
applicants offer. The prosecutor and her husband informed the competent authorities about
the offer of a bribe.
16. On 10 June 2002, S.H., accompanied by B.R. and U.I., went to Antwerp in order to
get part of the money sent by the applicant from Israel through an intermediary. They came
back on 14 June 2002. In the evening on the same date B.R. and U.I. met the prosecutors
husband, H.D., on the terrace of a restaurant in order to give him the money. They were
apprehended by investigators, who had been tipped off by H.D., while they were handing
him USD 99,700.

2. The applicants version of events


17. The applicants version of events differs from the version set forth by the
prosecutor and fully endorsed by all domestic courts.
18. The applicant alleged that his relationship with S.H. had been strained, as he had
been aware that S.H. had filed criminal complaints and given incriminating statements
against him concerning the CICO case. Furthermore, the applicant had initiated eviction
proceedings against S.H. because S.H. had ceased paying the rent for a flat he had rented
from the applicant.
19. The applicant claimed that S.H. had contacted him in Israel offering to resolve his
legal problems in Romania in exchange for a monthly salary of USD 2,000, the cessation of
the eviction proceedings against him and the payment of all his debts. In this connection he
had cited his relationship with prosecutor H.G. and police officers who had a close
relationship with H.G. and her husband. The applicant contended that he had not accepted

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S.H.s offer. On the contrary, he claimed that he had gone ahead with the eviction
proceedings against S.H, submitting an eviction notice to the domestic courts.
20. Furthermore, the applicant maintained that he had never offered H.G. any money.
He claimed that the police officers had met with him in April 2002 in Tel Aviv on S.H.s
initiative and had asked for USD 1.5 million in exchange for the annulment of the
international warrant. After the applicant had refused to pay the money he had contacted his
lawyer, A.M., and informed him about the offer and asked him to inform the Romanian
authorities about this. Despite the applicants manifest disagreement, S.H. had continued to
involve himself in matters in Romania without his approval.
21. The applicant also contended that the USD 97,000 confiscated during the sting
operation had not been provided by him and that, as was clear from the police officers
statements, the money had been taken from S.H.s flat.

3. The trial proceedings


22. The file was registered with the Bucharest Military Tribunal on 12 July 2002.
23. The evidence submitted by the prosecutor included transcripts of recordings of
telephone conversations between the accused, some of them in Romanian, some in Hebrew.
24. The lawyers appointed by the applicant did not have access to the file while it was
before the Bucharest Military Tribunal. On 17 July 2002 the applicants lawyers submitted
a request to be allowed to photocopy the documents in the file. Initially, the request was
denied without any reasons being given. The refusal was later justified by a lack of
equipment and it was suggested that the lawyers prepare handwritten notes. The lawyers
pointed out that the file ran to four hundred pages and was only available to the public for
four hours a day, while just four working days remained until the hearings. The Bucharest
Military Tribunal granted the lawyers limited additional time in which to consult the files
and the opportunity to make up to thirty pages of photocopies from the file.
25. On 4 December 2002, the military court ruled that it did not have jurisdiction to
examine the case. On 7 January 2003, the Supreme Court of Justice established that the
Bucharest Court of Appeal was the competent court to hear the case.
26. The trial took place in the applicants absence. According to the submissions of his
lawyers, he knew about the proceedings but preferred to stay in Israel because of his
medical condition. Therefore, he was represented in the proceedings by lawyers of his
choice.
27. On 3 February 2003, the applicants lawyers asked to photocopy the documents in
the file. They again encountered difficulties in this connection and were not allowed to
copy certain documents (for example, the transcripts of the tapped telephone calls).
28. On 21 February 2003 the applicants lawyers submitted that the applicant should
benefit from immunity from prosecution as provided for in Article 255 3 of the Romanian
Criminal Code in the same way that the prosecutors husband had. In this respect they
submitted a written statement given before a public notary on 18 July 2002 by a New York
lawyer, A.M. The lawyers maintained that the statement had been transmitted via facsimile
to the Romanian Ministry of Foreign Affairs. According to the statement, A.M. had
rendered legal services to the applicant in connection with his trials in Romania. In April
2002 the applicant had informed him about the offer made by two police officers to obtain
the annulment of the international arrest warrant issued against him in exchange for a bribe
amounting to USD 1.5 million. The lawyer further stated that he had informed the
Romanian authorities of this information on 10 May 2002 but that he had not received any
reply.
The court sent a letter to the Ministry asking to be informed whether the statement had
been sent and what follow-up action had been taken. The Ministry did not confirm the
receipt of a facsimile or email from the applicants lawyer.
29. On 21 and 26 February 2003 the four co-defendants gave oral statements before the

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court.
30. On 5 and 12 March 2003 the single judge heard six witnesses, among which were
prosecutor H.G. and her husband.
31. On 11 March 2003, one of the applicants lawyers lodged a request to obtain a
taped copy of the phone conversations used as evidence in the file. The applicant submitted
that this request had been dismissed and that in spite of their repeated requests to listen to
the audio recordings of the conversations, the defence had never had the opportunity to
listen to them in their entirety.
32. At the hearing held on 11 March 2003, when the court played the audio cassettes
containing the applicants recorded telephone conversations, the Hebrew language
interpreter appointed by the court informed it that there were discrepancies between the
contents of the transcripts in the file and the recordings on the tapes presented as evidence
by the prosecutor, insisting on the necessity of a technical expert report for clarification.
The court ordered that an expert report on the contents and the authenticity of the audio
cassettes be carried out by the National Institute for Forensic Expert Opinions (INEC), a
public body operating under the authority of the Ministry of Justice. The experts fees were
paid by the applicant and an expert appointed by the applicant was allowed to take part in
the process of compiling the report.
33. On several occasions the hearings were postponed because, among other reasons,
the technical expert report was not ready.
34. The Court of Appeal was initially composed of a single judge. Following the
amendment of the Romanian Code of Criminal Procedure in the course of the proceedings,
the courts composition included a second judge for the first time at the hearing held on
21 May 2003. At that point, most of the evidence had already been presented to the single
judge. That evidence was not reheard.
35. At a hearing held on 13 October 2003, the court of appeal took note of the fact that
the accused had requested that the audio tapes be played in court in order to establish
whether the transcripts from the case file corresponded with the recordings, whether the
recordings had been made in line with legal requirements and whether some excerpts had
been taken out of context. The domestic court further considered that given the fact that it
had ordered a technical expert report on the tapes, the tapes could not be played in court
until they had been analysed.
36. At a hearing held on 24 November 2003, the parties discussed a letter sent by INEC
in which it stated that it did not have authorised experts in voice identification. The
applicants lawyers and the other accused insisted that a new date be set for the hearing,
after an expert report had been included in the materials of the file.
37. At a hearing held on 15 December 2003, the parties were informed that the
technical report was not ready. The lawyers representing the applicant insisted that the
report be finalised if the transcripts were to remain in the case file.
38. At a hearing held on 22 December 2003 one of the applicants lawyers asked for
additional evidence to be taken. She submitted that more information should be obtained
about the origin of the money confiscated during the sting operation. She also asked for a
deposition to be taken from A.M. pursuant to a letter of request in connection with his
statement made before an American public notary on 18 July 2002. The said written
statement had been submitted before the court on 21 February 2003. The court dismissed
these requests on the grounds that the new evidence was irrelevant.
39. At the same hearing, the Court of Appeal concluded that, given the letter from
INEC and the conditions under which the tapes had to be analysed, the time it would take,
and the position of the accused, it was impossible to prepare the report and revoked the
order to prepare it.
40. On 8 January 2004 the lawyers appointed by the applicant sought leave from the
court to withdraw their representation of the applicant on the grounds that they could not
properly defend him. In this respect they relied on the fact that at the beginning of the trial

BERARU v. ROMANIA JUDGMENT

they had not had any knowledge of the contents of the indictment and the evidence against
their client, which had not been communicated to them. Their requests to obtain copies of
the documents in the file had been systematically declined on the grounds that due to a lack
of equipment only thirty pages could be photocopied (even though the file ran to several
hundred pages). They had not been permitted to obtain copies of certain documents in the
file. The lawyers also maintained that on 11 March 2003 they had submitted a request to
obtain the transcript of the phone conversations, which had been rejected by the court by an
interlocutory judgment rendered on 22 November 2003. With respect to the technical
expert report concerning the tapped telephone conversations, they alleged that after the
court had ordered its production on 11 April 2002, on 15 December 2003 it had reversed its
decision to gather this piece of evidence, which they submitted was of overwhelming
importance, without reasonable justification. They added that despite having authorised the
hearing of the applicant by rogatory commission, pursuant to a letter of request by an
interlocutory judgment of 19 March 2003, on 25 November 2003 the court had decided to
dispense with this piece of evidence on the grounds that the defence had not taken the
measures necessary for the applicant to be heard in that manner.
41. On 21 January 2004 INEC submitted its report, which concluded that the audio
tapes were not original and therefore, in the absence of any supplementary information,
they could be copies, mixes done with or without the intent to present a false record, or
fabricated. It also stated that voice identification could only be carried out using original
recordings and using the same equipment used for the recording, which had not been
provided by the court despite repeated requests in this regard.
42. By a judgment rendered on 26 January 2004 the Bucharest Court of Appeal
convicted the applicant of bribery and sentenced him to seven years imprisonment.
43. After presenting the prosecutors submissions at length, the court proceeded with
its own reasoning. It presented the facts, as established by that evidence, which it held to be
in line with the prosecutors version of events.
44. The Court of Appeal then stated:
Even if all the other evidence adduced can be considered subjective to some
degree, the transcripts of the phone conversations between the accused do not leave
room for much doubt as to their activity, their behaviour, the way in which they
intended to solve the problem, their attitude towards state institutions, as well as
their opinions concerning certain colleagues (police officers), prosecutors, judges,
representatives of the Intelligence Service and even leaders of the Romanian state.
[...]
Defendants U.I., B.R., S.H., and even B.S.L. tried to claim they had been incited to
commit the offences they were charged with by the attitude and actions of the persons
from whom they had asked for help, namely police officer H.D. and other police
officers, as well as prosecutor H.G. [...]
[...]
As has been mentioned above, the telephone conversations between the accused,
which were recorded over several months, show clearly and without any doubt that
the accused committed with intent the crimes with which they have been charged and
accepted the risks deriving from them. During the criminal trial, in an attempt to
defend themselves, they argued that the recordings had been unlawfully obtained, that
the transcripts did not conform to the recordings, that in parts the voices were not
theirs, and that excerpts of the transcripts had been taken out of context and had not
been extensively presented, all of which led to the request to hear the tapes in the
presence of a Hebrew-speaking expert witness, and later to the request for a technical
evaluation to be carried out. (...) At the same time, it should be noted that the only

BERARU v. ROMANIA JUDGMENT

institution which had a legal obligation to carry out the analysis did not comply with
that obligation and with the order of the court, rendering it impossible to admit
this piece of evidence.
45. The Court of Appeal emphasised the decisive role played by S.H. in the offering of
the bribe:
With S.H.s help, defendants U.I. and B.R. travelled to Israel, where they met
defendant Sorin Beraru and discussed the problems the latter was having in Romania.
They could not establish an action plan because defendant Beraru did not have
confidence in the two police officers connections and the possible support they could
obtain from such connections. On the other hand, defendants U.I. and B.R. were also
unsatisfied with the result of their visit. However, the person who tried to once again
establish a connection was defendant S.H., who not only bore the travel expenses and
cost of accommodation for the two defendants but also obtained their visas for Israel.

C. The criminal proceedings before the High Court of Cassation and


Justice
46. The applicant filed an appeal on points of law against the judgment of the firstinstance court alleging, inter alia, that he had not been duly summoned to the proceedings,
the composition of the panel of judges of the court of first instance had changed during the
proceedings, the pronouncement of the judgment had not been public and that the
procedural rules regarding the admission of evidence had not been observed. He also
averred that there had been procedural irregularities with respect to the recording of the
phone conversations and the use of their transcripts as evidence at trial. Thus, he argued
that the phone conversations had not been presented in their entirety in the transcripts, as
required by the Romanian Code of Criminal Procedure, and that their translation from
Hebrew into Romanian had not been accurate.
47. He also claimed that there had been police entrapment in his case. He submitted
that the first-instance courts findings of fact had been incorrect. He insisted that he had
neither offered money in exchange for a favourable outcome in the proceedings against him
nor agreed to any payment by S.H. to the prosecutor in charge of his case.
In this respect, he claimed that none of the recorded phone conversations between him
and S.H. could prove that he had asked S.H. to resolve his legal problems in Romania. He
had been repeatedly bombarded with proposals by S.H. and the police officers, each of
them trying to gain financial advantage from him. After the prosecutors husband had
informed the Romanian authorities about the offer of a bribe, the telephone conversations
he had had with S.H had no longer been recorded despite the fact that such conversations
could have been relevant as regards the conclusions drawn after the police officers visit to
Tel Aviv and the arrangements for the payment of part of the USD 1.5 million.
48. The applicant further claimed that the report of the sting operation was incomplete
as it did not contain any information about the origin of the money.
49. By a final decision of 14 May 2004, the High Court of Cassation and Justice
dismissed the appeal on points of law. It confirmed the findings of fact made by the firstinstance court and concluded that that court had duly analysed all the evidence before it and
correctly determined that the offences charged had been made out and imposed the
sentence. It based its decision on the evidence adduced before the court of first instance. It
repeatedly made reference to the recorded phone conversations between the applicant and
S.H., holding that it was clear from those records that the applicant had been informed by
S.H. about all the steps he had taken in connection with the bribe and had given indications
to S.H. as to how to act on his behalf. The final decision did not include any statement in
respect of the lawfulness or admissibility of the tapes and their transcripts.

BERARU v. ROMANIA JUDGMENT

II. RELEVANT DOMESTIC LAW


50. The legal provisions concerning the use of audio tapes as evidence in a criminal
trial, in force at the time of the events, as well as the subsequent modifications of the law
are detailed in the judgment in the case of Dumitru Popescu v. Romania (no. 2), no.
71525/01, 44-46, 26 April 2007).
51. The Romanian Code of Criminal Procedure (CCP) provides in its Article 3859 1,
sub-paragraph 11, that an appeal on points of law may be lodged if a first-instance court has
failed to state its opinion on certain evidence or rule on motions which would guarantee the
rights of the parties and influence the outcome of the proceedings. Article 38515 of the CCP
further provides that if the Supreme Court of Justice allows an appeal on points of law and
it is necessary to admit further evidence in order to settle the case, it shall refer the case
back to the lower court or settle the case itself.

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 1 AND 3 OF THE
CONVENTION
52. Relying on Article 6 1 and 3 (b), (c) and (d) of the Convention, the applicant
complained of a number of breaches of the guarantees of fair trial, in particular:
(a) The applicant complained that his right to be judged by an independent and
impartial tribunal had been infringed because five months after the commencement of the
proceedings before the Bucharest Court of Appeal the initial panel of a single judge had
been supplemented by a second judge after most of the evidence had been heard by the
court, and the second judge had deliberated and signed the judgment without hearing the
evidence in person.
(b) The applicant complained that the domestic courts had not observed their obligation
to disclose all the evidence and had not ensured that his lawyers had proper access to the
file in order to prepare his defence.
(c) The applicant further complained that the taking of evidence by the domestic courts
had not been adversarial and that the rules for the taking of evidence had been infringed by
the domestic courts. He also complained that his conviction had mainly been based on
transcripts of audio tapes which he claimed should not have been used as evidence in the
file.
53. Article 6 of the Convention provides as follows, in the relevant parts:
1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him; ...

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A. Admissibility
54. The Government argued that the applicant had not exhausted domestic remedies in
respect of the complaint concerning the infringement of the principle of immediacy by the
domestic courts, as he had never raised this issue before the first-instance or the appellate
courts.
55. The applicant contested the Governments objections.
56. The Court notes that the applicant raised the issue of the change in the composition
of the panel of judges of the court of first instance during the proceedings before it in his
appeal on points of law (see paragraph 46 above). Although the applicant did not raise this
issue before the court of first instance he did not waive his right to raise this issue later.
Therefore, the Court dismisses the Governments objection. It further notes that this
complaint and the other complaints raised under Article 6 of the Convention are not
manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention and are
not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits
1. The parties submissions
(a) The Governments submissions
57. The Government pointed out that the change of the panels composition had only
consisted of the appointment of a second judge as from the hearing of 21 May 2003, while
the first judge had remained unchanged. They also submitted that the newly-appointed
judge had had access to the files and tapes of the previous hearings and had been able to
obtain precise knowledge of the statements of each defendant and witness. Moreover, the
first-instance court had delivered its judgment on 26 January 2004, eight months after his
appointment.
58. As regards the denial of access to the file to the applicants defence lawyers by the
Bucharest Territorial Military Court, the Government admitted that the applicants chosen
lawyers had encountered certain difficulties in copying documents from the case file.
However, they added that the applicants chosen lawyers had had unrestricted access to the
case file during the proceedings before the Bucharest Court of Appeal. All their requests
concerning the studying or copying of documents in the file had been granted by the court.
59. The Government submitted that the applicant had had access to the evidence in the
file and had had the opportunity of challenging the recordings and opposing their use
during the domestic proceedings.
They submitted that the recordings had been made in accordance with the applicable
legislation, namely Articles 91(1) (5) of the CCP. They further contended that the
transcriptions in the file had contained the recorded conversations in their entirety and the
fact that the recordings had not been heard in court had not prevented the admission of that
evidence.
They pointed out that the recording of the phone conversations had not been the only
evidence assessed by the domestic courts. The courts had heard evidence from the
applicant, his co-accused and witnesses, and had examined official documents attached to
the case file. The Government contended that the fact that the domestic courts had not
allowed all of the applicants witnesses to be heard in court had not infringed the right to a
fair trial as that term was understood in accordance with the well-established case-law of
the Court. They further pointed out that the applicant had not complained before the
appellate court that the first-instance court had dismissed his request to adduce evidence
concerning the origin of the money offered as a bribe.
(b) The applicants submissions
60. As regards the change of the panels composition, the applicant submitted that most

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of the statements had been given in the absence of the second judge, who therefore would
not have been able to ascertain their credibility based on first-hand observation.
He also maintained that not only had the examinations of the witnesses and the
defendants taken place in the absence of the second judge, but so had the playing in open
court of the recorded telephone conversations, which had represented the central pillar of
the evidence on which his conviction had been based. He added that the said statements had
represented important pieces of evidence as the authenticity of the recordings could not be
established, and highlighted that additional pieces of evidence which the defence had
sought to lead after the appointment of the second judge had been rejected without
reasonable explanation by the court.
61. As regards his lawyers access to the file, the applicant pointed out that the
domestic courts had not observed their obligation to disclose all the evidence and had not
ensured that his lawyers had proper access to the file in order to prepare his defence. He
also stressed that for the purposes of preparing the defence it had been vital for his lawyers
to be given full, effective access to all the documents in the case file, especially to the
transcripts of the recorded phone conversations.
62. The applicant maintained that his conviction had mainly been based on the
recorded telephone conversations, which as stated in INECs expert opinion of 22 January
2004 had not been genuine. He also submitted that his attempts to challenge the
authenticity of the recordings and their inaccurate reproduction in the transcripts had not
been taken into account by the trial court. The applicant complained that his conviction had
largely been based on transcripts of audio tapes which he claimed should not have been
used as evidence in the file.

2. The Courts assessment


63. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects
of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint
under both provisions taken together (see, among other authorities, F.C.B. v. Italy, 28
August 1991, 29, Series A no. 208-B and Krombach v. France, no. 29731/96, 82,
ECHR 2001-II). In doing so, the Court will examine, in turn, each of the various grounds
giving rise to the present complaint, in order to determine whether the proceedings,
considered as a whole, were fair (see Al-Khawaja and Tahery v. the United Kingdom [GC],
nos. 26766/05 and 22228/06, 143, ECHR 2011).
(a) The composition of the panel of the first-instance court
64. The Court considers that an important aspect of fair criminal proceedings is the
ability for the accused to be confronted with the witnesses in the presence of the judge who
ultimately decides the case. The principle of immediacy is an important guarantee in
criminal proceedings in which the observations made by the court about the demeanour and
credibility of a witness may have important consequences for the accused. Therefore, a
change in the composition of the trial court after the hearing of an important witness should
normally lead to the rehearing of that witness (see P.K. v. Finland (dec.), no. 37442/97,
9 July 2002).
65. In the instant case the Court notes that the single judge had heard all of the
applicants co-defendants and the witnesses in February and March 2002. After the
appointment of the second judge the co-defendants and witnesses previously heard were
not heard again.
66. The Court accepts that while the second judge was appointed in May 2003, five
months after the proceedings commenced, the first judge, who heard most of the evidence
alone, remained the same throughout the proceedings. It also accepts that the second judge
had at his disposal the transcripts of the hearings at which the witnesses and the co-accused
had been heard. However, noting that the applicants conviction was based solely on
evidence not directly heard by the second judge, the Court considers that the availability of

10

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those transcripts cannot compensate for the lack of immediacy in the proceedings.
67. Furthermore, the Court is aware that the possibility exists that a higher or the
highest court might, in some circumstances, make reparation for defects in the first-instance
proceedings (see De Cubber v. Belgium, 26 October 1984, 33, Series A no. 86). In the
present case the Court notes that the court of last resort not only upheld the judgment of the
first-instance court, but also based its decision on the evidence adduced before the court of
first instance without a direct hearing of it.
68. Nonetheless, in the Courts view, the circumstances surrounding the impugned
change in the composition of the panel of the Bucharest Court of Appeal do not appear to
be such as to make its impartiality open to doubt. On the other hand, the change does have
to be considered as regards its possible consequences for the fairness of the proceedings as
a whole.
(b) The applicants lawyers access to the files and evidence
69. The Court points out that Article 6 3 (b) of the Convention secures to everyone
charged with a criminal offence the right to have adequate time and facilities for the
preparation of his defence. Moreover, the facilities to be provided to everyone charged
with an offence include the possibility of being informed, for the purposes of preparing his
defence, of the result of the investigations carried out throughout the proceedings.
70. The Court reiterates that it has already found that unrestricted access to the case file
and unrestricted use of any notes, including, if necessary, the possibility of obtaining copies
of relevant documents, are important guarantees of a fair trial. The failure to afford such
access has weighed, in the Courts assessment, in favour of the finding that the principle of
equality of arms had been breached (see Matyjek v. Poland, no. 38184/03, 59 and 63,
ECHR 2007-V, and Luboch v. Poland, no. 37469/05, 64 and 68, 15 January 2008).
71. In the present case the Court notes that the applicants lawyers were unable to gain
direct access to the case file until a late stage; they were not initially provided with a copy
of the indictment (see paragraphs 24 and 40 above). Moreover, they could not obtain either
a copy of the transcripts of the recordings of the tapped phone calls or a taped copy of the
tapped phone calls used as evidence in the file. In this respect, the applicants lawyers
submitted numerous requests to the domestic courts for access to the file. The Court also
notes that the lack of access to the file, which caused difficulties in the preparation of the
defence, was exactly the reason advanced by the applicants lawyers for seeking to
withdraw their representation of the applicant.
(c) The taking and assessment of evidence
72. The Court reiterates that its duty, pursuant to Article 19 of the Convention, is to
ensure the observance of the engagements undertaken by the Contracting States to the
Convention. In particular, it is not its function to deal with errors of fact or of law allegedly
committed by a national court, unless and in so far as they may have infringed rights and
freedoms protected by the Convention. While Article 6 of the Convention guarantees the
right to a fair hearing, it does not lay down any rules on the admissibility of evidence as
such, which is primarily a matter for regulation under national law (see Brualla Gmez de
la Torre v. Spain, 19 December 1997, 31, Reports 1997-VIII and Garca Ruiz v. Spain
[GC], no. 30544/96, 28, ECHR 1999-I).
73. It is, therefore, not the role of the Court to determine, as a matter of principle,
whether particular types of evidence for example, unlawfully obtained evidence may be
admissible. The Court has already found in particular circumstances of a given case, that
the fact that the domestic courts used as sole evidence transcripts of unlawfully obtained
telephone conversations, did not conflict with the requirements of fairness enshrined in
Article 6 of the Convention (see, among other authorities, Khan v. the United Kingdom, no.
35394/97, 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, 76,
ECHR 2001-IX).
74. Therefore, the question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were fair (see Al-Khawaja

BERARU v. ROMANIA JUDGMENT

11

and Tahery v. the United Kingdom [GC], cited above, 144).


75. In determining whether the proceedings as a whole were fair, regard must be had to
whether the rights of the defence were respected. It must be examined in particular whether
the applicant was given the opportunity to challenge the authenticity of the evidence and to
oppose its use. In addition, the quality of the evidence must be taken into consideration,
including whether the circumstances in which it was obtained cast doubt on its reliability or
accuracy (see Bykov v. Russia [GC], no. 4378/02, 90, 10 March 2009).
76. In the instant case, the Court is aware that the use of the audio tapes might firstly
raise an issue under Article 8 of the Convention. However, the applicant did not raise such a
complaint. Nevertheless, when undertaking an analysis under Article 6, account should be
taken of the Courts findings under Article 8 concerning the substance of the Romanian
relevant provisions regarding telephone surveillance in force at that time in
Dumitru Popescu (no. 2), cited above. The Court stated that at the time of the proceedings
the applicable law did not provide sufficient safeguards against arbitrary interference with
the applicants private life (ibid. 61). It was established, inter alia, that the prior
authorisation of the telephone surveillance had been given by a prosecutor instead of an
independent and impartial tribunal.
77. The Court reiterates that the evidence does not have a pre-determined role in the
respondent States criminal procedure. The courts are free to interpret it in the context of
the case and in the light of all the elements before them (see Dumitru Popescu, cited above,
110).
78. The Court observes that the recordings played an important role in the body of
evidence assessed by the courts. Thus, at the beginning of the proceedings the first-instance
court considered a technical expert report on the recordings as absolutely necessary (see
paragraph 11) and ordered that such a report be produced. Furthermore, the first-instance
court based its reasoning on the transcripts of the recordings, concluding that they leave
little room for doubt as regards the accuseds guilt, while acknowledging that the
statements given by the other co-accused were not totally reliable, as they could be
considered subjective (see paragraph 44).
79. Despite the importance of the recordings in the assessment of evidence the firstinstance court changed her initial position concerning the necessity of a technical report in
order to establish the authenticity of the recordings. At the end of proceedings it considered
the report as superfluous and revised its decision to adduce this evidence (see
paragraph 39).
80. In addition, despite that INEC submitted a technical report stating that there were
doubts about the authenticity of the recordings (see paragraph 41) before the delivery of its
judgment, the first-instance court relied on the transcripts instead of re-opening the
proceedings in order to allow the parties to submit their observations on the report.
81. The Court notes that not only did the domestic courts base their decision on
recordings of contested authenticity, but they did not reply to the applicants submissions
that he had not been presented with the transcripts and therefore was not aware of their
content.
(d) Conclusions
82. The Court notes that none of the defects noted at the pre-trial and first-instance trial
stage were subsequently remedied by the appeal court. Despite having jurisdiction to
review all aspects of a case on questions of both fact and law, the High Court of Cassation
and Justice did not conduct a new judicial examination of the available evidence and the
parties legal and factual arguments. Both the Bucharest Court of Appeal and the
High Court of Cassation and Justice merely reiterated the prosecutors findings, and did not
address the repeated complaints made by the defendants concerning various defects in the
trial.
83. In view of the above findings, the Court concludes that the proceedings in question,
taken as a whole, did not satisfy the requirements of a fair trial.

12

BERARU v. ROMANIA JUDGMENT

84. Accordingly, there has been a violation of Article 6 1 taken together with Article
6 3 (b), (c) and (d) of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION


85. Lastly, the applicant complained under Article 6 of the Convention of infringements
of his right to the public pronouncement of the judgment and of his right to be presumed
innocent due to the media coverage of the proceedings.
86. In the light of all the material in its possession, and in so far as the matters
complained of are within its competence, the Court considers that this part of the
application does not disclose any appearance of a violation of the Convention. It follows
that it is inadmissible under Article 35 3 as manifestly ill-founded and must be rejected
pursuant to Article 35 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION


87. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

A. Damage
88. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.
89. The Government considered the applicants claim unfounded and unsubstantiated.
90. Having regard to all the circumstances of the present case, the Court accepts that
the applicant has suffered non-pecuniary damage which cannot be compensated for solely
by the finding of a violation. Making its assessment on an equitable basis, the Court awards
the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable to him.
91. Moreover, the Court reiterates that when a person, as in the instant case, was
convicted in domestic proceedings which failed to comply with the requirements of a fair
trial, a new trial or the reopening of the domestic proceedings at the request of the
interested person represents an appropriate way to redress the inflicted violation.

B. Costs and expenses


92. The applicant also claimed EUR 10,000 for the costs of his legal representation.
This sum corresponded to 100 hours of legal work billable by his lawyers at an hourly rate
of EUR 100. The applicant also claimed EUR 20,264 for translation costs.
93. The Government contested the claim. In their view, the applicant had failed to show
that the expenses were reasonable and necessary.
94. According to the Courts case-law, an applicant is entitled to the reimbursement of
costs and expenses only in so far as it has been shown that these have been actually and
necessarily incurred and are reasonable as to quantum. In the present case, regard being had
to the documents in its possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 3,000 covering costs under all heads of claim.

C. Default interest
95. The Court considers it appropriate that the default interest rate should be based on
the marginal lending rate of the European Central Bank, to which should be added three
percentage points.

BERARU v. ROMANIA JUDGMENT

13

FOR THESE REASONS, THE COURT UNANIMOUSLY


1. Declares the complaints concerning the change of the composition of the
first-instance court, the applicants lawyers access to the file and evidence, and the use
of recordings of the applicants phone conversations as evidence admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 1 taken together with Article 6 3
(b), (c) and (d) of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final in accordance with Article 44 2 of the
Convention, the following amounts, to be converted into the currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three percentage
points;
4. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 18 March 2014, pursuant to Rule 77 2
and 3 of the Rules of Court.

Santiago Quesada
Registrar

Josep Casadevall
President